Copyright or copy wrong?

In the US,we like to think we're freeto speak out on important issues. But recent laws have limited that Constitutional right. The 1998 Digital Millennium Copyright Act (DMCA), for example, makes it a felony to publicly discuss the technology of, or any flaws in, digital copy-protection technologies. The Supreme Court has yet to rule definitively on what people can and can't say under the DMCA.

Original works deserve copyright protection, but at the same time, people must have the freedom to discuss technologies, even those that can thwart copyright-protection schemes. In effect, the DMCA makes it a crime to distribute information someone can use to circumvent schemes that protect copyrighted machine-readable material. The media industry defines the term "distribute" rather broadly.

This past year, Edward W. Felten, a Princeton University professor, and his colleagues entered a contest sponsored by the Secure Digital Music Initiative (SDMI), which aimed to look for weaknesses in digital-music protection. But rather than accept the SDMI's monetary prize and letting the SDMI keep its entry secret, Felten's group revealed techniques that defeat protective "watermarks." According to the Recording Industry Association of America, the scientists could face legal action under the DMCA for disseminating their techniques.

Such a suit has yet to occur, so the legal issues surrounding publication of weaknesses in the SDMI's watermark technology remain unresolved. But imagine being jailed for publicizing weaknesses in copyrighted protocols used to secure financial transactions on a Web site. Such flaws deserve public disclosure.

During the summer of 2001, the FBI arrested Dmitry Sklyarov after he presented a paper that revealed weaknesses in Adobe's eBook Reader software. The flaws allowed a Russian company to produce code that could let people circumvent some of the encryption Adobe built into its materials. Neither Sklyarov nor the software company actually made illegal copies of eBooks, but the DMCA says you can't even create the tools to do so. Using the same reasoning, a company that makes a CD writer, a VCR, or even a digital camera—even though the companies do no copying—could be guilty of violating the DMCA.

Early in November, an appeals court in California ruled free speech covers publishing software code that could decrypt DVDs and make it possible to copy digital movies. The code is simply an expression of the author's ideas, said the court. As long as people devise encryption techniques, others will work to overcome them. And in the process, they will reveal flaws that may temporarily weaken copyright protection schemes. The Constitution protects that right. The information businesses should reward people who discover a security weakness rather than try to stifle their ability to speak out about it.